Review of War Pensions Decisions and Awards
| Author | Andrew Bano |
| Pages | 37-46 |
Chapter 6
Review of War Pensions Decisions and Awards
REVIEW IN THE WAR PENSIONS SCHEME
6.1 The term ‘review’ is used in the War Pensions Scheme to denote the process whereby decisions, assessments and awards can be reconsidered and changed. The War Pensions Scheme allows decisions made by the Secretary of State accepting or rejecting a claim for pension and assessments of a claimant’s degree of disablement to be reviewed at any time and on any ground, although a revised decision will only operate prospectively from the date of the review application
Review of decisions and assessments
6.2 Article 44(1) of the SPO 2006 provides:
(1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8)—
(a) any decision accepting or rejecting a claim for pension; or
(b) any assessment of the degree of disablement of a member of the armed forces; or
(c) any final decision that there is no disablement or that the disablement has come to an end
may be reviewed by the Secretary of State at any time on any ground.
38 War Pensions and Armed Forces Compensation – Law and Practice
Review of awards
Meaning of ‘award’
6.3 The term ‘award’ is not defined as such, but article 2(1) of the SPO 2006 refers to a person having been ‘awarded’ retired pay, pension, allowance or other continuing benefit. Under article 44(2), awards which do not require a ‘decision’ within the scope of article 44(1) can be reviewed on one of the grounds specified in article 44(2)(a), (b) or (c). Such awards include those which depend on entitlement to other awards, such as severe disablement occupational allowance,
which is paid to claimants who are in receipt of constant attendance allowance and who are also ordinarily employed in a gainful occupation.
Grounds for reviewing awards
Ignorance of a material fact or mistake of fact or law
6.4 By article 44(2)(a) of the SPO 2006, an award can be reviewed at any time if ‘the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law’. In TL v Secretary of State for Defence,
Judge Rowland held (at [16]) that ‘ignorance of, or a mistake as to, a material fact’ is a ground upon which a decision may be reviewed because it was wrong at the date it was made. In social security law, a decision can only be altered on the similar ground in regulation 6(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999
assert and prove that the inference might not have been drawn, if the determining authority had not been ignorant of some specific fact of which it could have been aware, or had not been mistaken as to some specific fact which it took into consideration.
In DP v Secretary of State for Defence (WP),
7 If a tribunal is relying on ignorance of material fact in order to revise an assessment, it needs to work out the fact of which the Secretary of State was said to be ignorant. The [tribunal] needs to identify the evidence that was before the Secretary of State and what it contained. If, for example, at the date of decision the Secretary of State actually possessed all the medical reports said to be relevant, it would be difficult to find that he was ignorant of their contents. He may have underestimated or overestimated the significance of the evidence, but that does not mean he was ignorant of facts. Equally, he may simply have made a controversial judgement call in a difficult situation. That does not display ignorance of fact, either.
8 Where a tribunal seeks to rely on a mistake of fact, it must take care to distinguish between fact and opinion. An opinion is a belief which may, or may not, be based on rational analysis of objective facts. Where it is based on matters that are objectively provable, so much the better. Sometimes, however, the basis of an opinion will not be easy to discern. ...
9 In order to classify what otherwise appears to be a mere opinion as a statement of fact, it would be necessary to find that the person putting the opinion forward was impliedly stating that he had reasonable grounds for believing his opinion to be correct.
Relevant change of circumstances
6.5 Under article 44(2)(b) of the SPO 2006, an award can be reviewed at any time if ‘there has been a relevant change of circumstances since the award was made’. In TL v Secretary of State for Defence,
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